Bombay High Court
Shaikh Kalim @ Kallu Shaikh Salim vs The State Of Maharashtra on 8 March, 2022
Bench: V.K. Jadhav, Sandipkumar Chandrabhan More
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
943 CRIMINAL APPLICATION NO.877 OF 2020
IN
CRIMINAL APPEAL NO. 262 OF 2020
SHAIKH KALIM @ KALLU SHAIKH SALIM
VERSUS
THE STATE OF MAHARASHTRA
...
Advocate for Applicant : Mr. More Abhiit S.
APP for Respondent : Mr R D Sanap
Advocate for Assist to APP : Ms V S Ghanekar
...
AND
CRIMINAL APPLICATION NO.1205 OF 2020
IN
CRIMINAL APPEAL NO.393 OF 2020
SYED SHAHABODDIN ALIAS SHAHAB S/O SYED
RASHED
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER.
...
Mr. R.S.Deshmukh Sr. Counsel I/b Mr. D R Deshmukh
Advocate for the applicant.
APP for Respondent : Mr R D Sanap
Advocate for Assist to APP : Ms V S Ghanekar
...
CORAM : V.K. JADHAV & SANDIPKUMAR C. MORE, JJ.
...
Date of Reserving the order : March 02, 2022
Date of pronouncing the order : March 08, 2022
...
ORDER :- (Per V K Jadhav, J.)
1. Pending the Criminal Appeal No.393 of 2020 and
Criminal Appeal no.262 of 2020 preferred against the
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judgment and order of conviction dated 14.2.2020
passed by the Additional Sessions Judge, Aurangabad
in Sessions Case No.243 of 2018 convicting thereby both
the applicants (appellants) for the offence punishable
under sections 302, 201, 364, 365, r/w 34 of IPC and
sentencing them to suffer imprisonment as detailed in
the operative part of the order, the applicant/original
accused No.6 (referred as accused no.8 in the charge
sheet) Syed Shahaboddin alias Shahab s/o Syed Rashed
has preferred criminal application no.1205 of 2020 in
criminal appeal no.393 of 2020 and applicant/original
accused no.7 Shaikh Kalim @ Kallu Shaikh Salim has
preferred criminal application no.877 of 2020 for
suspension of substantive part of the sentence and for
bail.
2. The prosecution story in brief is that, on 16.5.2018
deceased Sk. Jabbar Sk. Sattar was abducted with an
intention to confne him wrongfully and secretly and
further Sk. Jabbar Sk. Sattar was murdered. It is also
the prosecution story that the evidence connecting with
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his murder was caused to be disappeared with an
intention to screen and save from legal punishment.
The prosecution has proved involvement of the present
applicants/accused in connection with the crime as a
culprit to the extent of the applicant Syed Shahaboddin
@ Shahab s/o Syed Rashed in Criminal application
no.1205 of 2020 and as an abettor to the extent of the
applicant Shaikh Kalim @ Kalu Shaikh Salim in
criminal application no.877 of 2020.
3. The learned Senior Counsel Mr. Deshmukh i/b Mr.
D R Deshmukh for the applicant in criminal application
no.1205 of 2020 submits that, the prosecution evidence
mainly rests upon the evidence of approver PW-18
Shaikh Imran Shaikh Karim alias Baba and PW 2
Raeesa Begum. Approver PW-18 Shaikh Imran Shaikh
Karim alias Baba was arrayed as an accused no.2,
however, subsequently he has fled an application to
pardon and his application was allowed and he has
become the approver. The learned Senior Counsel
submits that, in order to rely upon the evidence of the
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approver PW-18 Shaikh Imran Shaikh Karim alias Baba,
the approver has to take active and positive part in the
commission of offence. In the instant case, approver
PW-18 Shaikh Imran Shaikh Karim alias Baba has not
taken any active part in the incident of abduction of
deceased Sk. Jabbar Sk. Sattar and in causing assault
to deceased Sk. Jabbar Sk. Sattar, which resulted into
his homicidal death. The learned senior counsel
submits that entire attempt on the part of the approver
PW-18 Shaikh Imran Shaikh Karim alias Baba is to save
himself and to implicate others. His evidence is wholly
exculpatory, falsely implicating other accused. The
learned Senior counsel submits that, no reliance can be
placed upon his evidence. The learned senior counsel
submits that there is no corroboration to the evidence of
approver PW-18 Shaikh Imran Shaikh Karim alias Baba
on material parts. Learned senior counsel submits that
PW-2 Raeesa Begum is not a witness to the actual
incident. Thus, there is no corroboration to the
evidence of the approver PW-18 Shaikh Imran Shaikh
Karim alias Baba. Learned senior counsel submits that
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even if the evidence of approver PW-18 Shaikh Imran
Shaikh Karim alias Baba is considered, then, no specifc
role has been attributed to the applicant Syed
Shahaboddin @ Shahab s/o Syed Rashed in criminal
application no.1205 of 2020 so as to connect him with
the commission of murder. Learned senior counsel
submits that the allegations have been made mainly
against accused Shaikh Wajed @ Babala Shaikh Asad
and Shaikh Amjad Shaikh Asad @ Mosin. As per the
approver's evidence, accused Shaikh Amjad Shaikh
Asad @ Mosin and the present applicant Syed
Shahaboddin @ Shahab s/o Syed Rashed brought
deceased Sk. Jabbar Sk. Sattar at the spot of the
incident on the motorcycle. Further, the applicant Syed
Shahaboddin @ Shahab s/o Syed Rashed went to bring
auto-rickshaw and he came the spot again alongwith
auto-rickshaw. Learned senior counsel submits that on
the basis of these limited role ascribed to the applicant
Syed Shahaboddin by approver PW-18 Shaikh Imran
Shaikh Karim alias Baba, the Trial Court has convicted
the applicant/accused Syed Shahaboddin @ Shahab s/o
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Syed Rashed, as detailed in operative part of the
judgment and order of conviction. The learned senior
counsel submits that there is a mark difference between
the injuries noted in the inquest panchnama and the
post-mortem report. The learned senior counsel submits
that the applicant may be released on bail by
suspending the substantive part of the sentence till the
disposal of the appeal.
4. The learned counsel Mr More appearing for the
applicant Shaikh Kalim @ Kallu Shaikh Salim in
criminal application no.877 of 2020 submits that, the
applicant is a auto-rickshaw driver and, he was
convicted by the trial court as an abettor. Learned
counsel submits that, even as per the approver's
evidence PW-18 Shaikh Imran Shaikh Karim alias Baba
the applicant Shaikh Kalim @ Kallu Shaikh Salim- a
rickshaw driver was not knowing as to what is going on
the spot. Admittedly, he has not participated in the
actual commission of the crime nor abetted the
commission of the crime in any manner. He was called
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there to carry the injured in his auto-rickshaw. The
applicant may be released on bail by suspending the
substantive part of the sentence till the disposal of the
appeal.
5. The learned APP has strongly resisted both these
criminal applications and submits that evidence of the
approver PW-18 Shaikh Imran Shaikh Karim alias Baba
is reliable, trust worthy, consistent and there is a
suffcient corroboration to his evidence. Though, PW-2
Raeesa Begum is not a witness to the incident of giving
blows of knife to deceased Sk. Jabbar Sk. Sattar by the
accused, however, she had been to the spot, requested
the accused persons not to extend the beating to the
deceased Sk. Jabbar Sk. Sattar and she has also heard
the noise of the persons to whom the accused were
extending the beating. The learned APP submits that
the prosecution has examined PW-13 Dr. Vikas Madan
Rathod to prove the homicidal death of deceased Sk.
Jabbar Sk. Sattar. PW-13 Dr.Vikas Madan Rathod has
conducted the postmortem examination of the dead
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body of Sk. Jabbar alongwith Dr. Vaibhav Wankhede.
He has deposed that dead body was approximately 30
years and it was a male dead body. He further deposed
that a stone was tied around abdominal cavity of size
32x80cmx12 and its weight was 10.17 kgs. PW 13
Dr.Vikas Rathod has noticed 19 external injuries and
most of the injuries are punctured wound, incised
wounds, stab injuries etc. The cause of death of Sk.
Jabbar was cut throat with multiple stab injuries. The
learned APP submits that prosecution has well
established the role played by both the applicants in
connection with the commission of the murder. The
Trial Court has rightly convicted both the applicants.
The applicants are not entitled to be released on bail by
suspending the substantive part of the sentence.
6. The prosecution case mainly rests upon the
evidence of the approver PW-18 Shaikh Imran Shaikh
Karim alias Baba. It is well settled that the approver's
evidence must pass double test of reliability and
corroboration for material particulars. It is also a
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settled position that accomplice is competent witness
against co-participant in the crime, however, there
should be a corroboration from the independent source
in material aspects.
7. We have carefully gone through the evidence of the
approver PW-18 Shaikh Imran Shaikh Karim alias Baba.
On 16.5.2018 while returning to the house from the side
of the river, accused Amjad met him. Accused Amjad
told him to carry wooden rafter. Accordingly, they took
wooden rafter and kept near the river. At that time, he
saw accused Shaikh Wajed @ Babla Shaikh Asad there.
Said Shaikh Wajed @ Babla Shaikh Asad came near the
place where wooden rafter was kept. There were talks
between the accused Sk. Amjad Shaikh Asad @ Mosin
and accused Shaikh Wajed @ Babla Shaikh Asad.
Approver PW-18 Shaikh Imran Shaikh Karim alias Baba
further deposed that, Shaikh Amjad took out a mobile
phone for calling the applicant/accused Shahaboddin
(the applicant in criminal application no.1205 of 2020).
Thereafter, accused Sk. Wajed went to bring the
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applicant Shahaboddin. After 15 minutes, accused
Shaikh Amjad and applicant/accused Shahaboddin
brought deceased Sk.Jabbar Sk. Sattar on motorcycle.
Accused Sk. Amjad gave a blow of leg on the chest of
deceased Sk.Jabbar Sk. Sattar, in consequence of which
he fallen down. Thereafter, they have removed his
clothes. At the instance of accused Sk. Wajed, approver
PW-18 Shaikh Imran Shaikh Karim alias Baba slapped
the deceased Sk. Jabbar Sk. Sattar. Prima facie, it
cannot be said that the approver PW-18 Shaikh Imran
Shaikh Karim alias Baba had not participated in
commission of the crime and, his evidence is
exculpatory. Approver PW-18 Shaikh Imran Shaikh
Karim alias Baba has further deposed about the role
played by accused Shaikh Amjad Shaikh Asad @ Mosin
and Shaikh Wajed @ Babala Shaikh Asad. He has also
deposed that PW-2 Raeesa Bhabhi came there and told
to accused Shaikh Wajed @ Babala as to why he was
beating a poor person and further requested him to
leave that poor person and not to beat him. Even PW 2
Raeesa Begum told accused Shaikh Wajed @ Babala
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that if he wants, he may cut her hand but leave that
person. However, Shaikh Wajed @ Babala asked that
lady to leave that place. Approver PW-18 Shaikh Imran
Shaikh Karim alias Baba further deposed about all the
details as to how deceased Sk. Jabbar Sk. Sattar was
assaulted in a barbaric and inhuman manner. Initially,
accused Sk. Wajed @ Babala Shaikh Asad gave a blow of
knife (suri) behind the right ear of deceased Sk. Jabbar
Sk. Sattar, as such blood was oozing from that injury.
Thereafter, Sk. Amjad Shaikh Asad @ Mosin asked
Haroon to put liquor in one Glass and forced the
deceased Sk. Jabbar to drink the said liquor. After
drinking the said liquor, deceased Sk. Jabbar was not in
a position to stand and thereafter accused Sk. Wajed @
Babala gave another blow of knife upon left shoulder of
deceased Sk Jabbar Sk. Sattar, due to which left
shoulder of Sk. Jabbar Sk. Sattar was torned.
Thereafter, accused Sk. Amjad Shaikh Asad @ Mosin
asked approver PW-18 Shaikh Imran Shaikh Karim alias
Baba to bring water from the house of Raisa Bhabhi.
Accordingly, he went at the house of PW-2 Raeesa
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Bhabhi. Even, at that time, PW-2 Raeesa Bhabhi told
him that not to involve in the said activities of those
persons, however, approver PW-18 Shaikh Imran
Shaikh Karim alias Baba took the water and came on
the spot. The applicant/accused Syed Shahaboddin @
Shahab s/o Syed Rashed went to bring the auto-
rickshaw and he came on the spot with the auto-
rickshaw. Accused Sk. Wajed @ Babala bring one
handle of spade and given a blow of the handle of spade
upon the leg of Sk Jabbar Sk. Sattar, due to which he
was tossing. Thereafter, accused Sk. Wajed @ Babala
Shaikh Asad, Sk. Amjad Shaikh Asad @ Mosin, Haroon
and accused Syed Shahaboddin @ Shahab S/o Syed
Rashed put the deceased Sk Jabbar Sk. Sattar in auto
rickshaw. Accused Shaikh Wajed @ Babala gave blow of
knife upon the chest of deceased Sk. Jabbar Sk. Satrar
for four to fve times. The evidence of approver PW-18
Shaikh Imran Shaikh Karim alias Baba is corroborated
by PW-2 Raeesa Begum. The evidence of approver PW-
18 Shaikh Imran Shaikh Karim alias Baba is also
corroborated by PW-13 Dr. Vikas Madan Rathod, who
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had conducted postmortem examination on the dead
body of Sk.Jabbar Sk. Sattar. We are shocked to see the
description of the external injuries on the person of
deceased Sk Jabbar Sk. Sattar. Those external injuries
were 19 in numbers and most of the injuries are
punctured wound, incised wound and stab injuries on
the various parts of the body. Further, as per the
evidence of Dr. Vikas Rathod a stone was tied around
the abdominal cavity of size 32x80cmx12 cm and its
weight was 10.17 kgs. There is a specifc role ascribed
to the applicant/accused Syed Shahaboddin @ Shahab
s/o Syed Rashed in Criminal application no.1205 of
2020. We are not inclined to release him on bail by
suspending substantive part of the sentence.
8. So far as the applicant/accused Shaikh Kalim @
Kallu Shaikh Salim in criminal application no.877 of
2020 in criminal appeal no.262 of 2020 is concerned,
his role is limited. He is an auto-rickshaw driver. There
is no positive evidence against him to conclude that he
has abetted the commission of murder of Sk Jabbar Sk.
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Sattar in any manner. Approver PW-18 Shaikh Imran
Shaikh Karim alias Baba has also deposed that the
applicant/accused Shaikh Kalim @ Kallu Shaikh Salim-
auto-rickshaw driver was not knowing about the
incident. In view of the same, we are inclined to release
him on bail by suspending the substantive part of the
sentence. Hence, We proceed to pass the following order:
ORDER
I. Criminal application No.1205 of 2020 in
Criminal appeal No.393 of 2020 (Syed
Shahaboddin @ Shahab s/o Syed Rashed Vs.
the State of Maharashtra) is hereby dismissed.
II. Criminal application no.877 of 2020 in
criminal appeal no.262 of 2020 (Shaikh Kalim
@ Kallu Shaikh Salim Vs. the State of
Maharashtra) is hereby allowed.
III. Pending the criminal appeal no.262 of 2020,
the substantive part of the sentence passed by
the learned Additional Sessions Judge,
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Aurangabad on 14.2.2020 in Sessions Case
No.243 of 2018 stands suspended to the extent
of the applicant Shaikh Kalim @ Kallu Shaikh
Salim only till disposal of Criminal Appeal
No.262 of 2020 and till then the applicant
Shaikh Kalim @ Kallu Shaikh Salim be
released on bail on furnishing P.B. of
Rs.20,000/- (Rs.Twenty Thousand) with one
solvent surety of the like amount. Bail before
the lower court.
IV. Criminal application no.877 of 2020 in
criminal appeal no.262 of 2020 accordingly
disposed off.
( SANDIPKUMAR C. MORE, J. ) ( V.K. JADHAV, J. )
...
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